New Brazil Forest Code is Unconstitutional

JURIST Guest Columnist Jayme Mello, a Senior Attorney at Nogueira, Elias, Lakowski and Matias, says that the new Brazilian Forest Code amendments are a threat to the Brazilian environment and should be declared unconstitutional...

For the past two years a major battle between environmental and farming representatives has raged over a new forest code. A clean environment and preservation are the heart of the issue because of Brazil's role as a supporter of the Kyoto Protocol and as a nation at the forefront of global sustainability.

Brazil has an extremely diverse biome due to its geographical location, which spreads from the equator to the subtropical region of the south. In addition, the bulk of the Amazon Rainforest is located in the north of the country. No legal statutes have been effective in preserving the unique biodiversity found in the country. The ineffectiveness of the law combined with lackadaisical oversight of the execution of the statutes has caused the deterioration of several important forest and natural areas. This deterioration triggered a public reaction and a legislative movement that started in 2001, when a bill was submitted in the Chamber of Deputies for consideration.

Over the past two years there has been a push by many different interests to approve a final draft and send for presidential approval. The battlefield is formed by a mix of environmentalists, farmers, small farmers, municipalities, national defense representatives and defenders of historical heritage, each with their own interest.

If there is a clean dividing line between opposing groups in this matter, it can be identified as the amnesty granted to economic exploration that occurred on or before December 31, 2008. Farms that were created up to that date would be granted full pardon of activities and given a grant of leave to continue exploring the area without any sort of compensation, fine or obligation to recompose the environment.

When the bill was sent to the Senate, several amendments were approved, but one in particular caused an uproar: the amnesty for illegal swamp occupation. The swamp areas are a thriving biome for sea life. They function as a breeding area for many sea creatures as well as a regulator of salinity in coastal areas and river deltas.

The inclusion of the swamp area as an object of amnesty came as a surprise during the legislative process. This amendment was added by the Senate after the bill was passed by the Chamber of Deputies. If the amendment stands in the Chamber of Deputies, this will be a major threat to sustainability, not only locally but worldwide. The reason is simple: Brazil holds 25 percent of the world's swamp areas. Out of that total, 45 percent will be compromised and destroyed by shrimp farms. This means that more than 10 percent of the world swamps will be irremediably destroyed, causing an even larger detriment on sea life.

The Supreme Court of Brazil is likely to address the code's constitutionality and would consider two issues.

The first and most important issue to be discussed by the Supreme Court will be regarding the extension and enforcement of the right to property. The Brazilian Constitution grants the right to property as a fundamental right and an individual warranty. However, this grant is not an absolute right. It comes with a burden: the property must be used according to its social function.

The social function of property was introduced in the Brazilian Constitution in 1988. At first, the clause was construed as important in order to amend centuries of land concentration in the hands of a minority of landowners. The social function clause, however, has been further studied and developed, and the courts have interpreted it to an extent never imagined by the Constitutional Congress. Used as an important instrument for rural reformation and ethical restrictions on land use, the clause has enabled courts to distribute land under a more socially accepted view rather than a formalistic question of title.

The social function clause will be a major barrier for the standing of the bill. When it comes to an unconstitutionality lawsuit, the social function clause could be claimed to justify the lack of reasonability in the bill. The question will be the confrontation between the right to production, employment and development brought by the shrimp farms against the global right to a clean environment.

This confrontation will be faced in a period of increased social interest about the environment. This social intrigue has two reasons: Brazil would like to position itself as a leading country on environmental policies, and second, the upcoming conferences on climate changes and environmental impacts will be important for Brazil, especially since Rio de Janeiro is hosting one in 2017. Brazil cannot host an event of such importance if there is a a pending issue on the environmental law that affects the entire world. This would be hypocritical.

The second constitutional problem is the fact that the swamp areas are land that belongs to the Union as a common use good and therefore cannot be considered private property. It is absurd that environmental amnesty may be granted to those who explore the swamp areas when the swamps cannot ever become private property.

If this rationale applies, a breach of the rule of non-apprehension of common use goods will be established. The fundamental unconstitutionality of the bill appears even stronger, since it would lean toward questions of sovereignty and the dispersion of public property. Even considering the possible solution of licensing instead of apprehension, it would still be a factor in how to distribute the licenses, as the majority of shrimp farms in place are illegal occupants of such lands.

There is no precedent in the Supreme Court regarding either matter. It is impossible to predict the result of a such a suit. However, if we contemplate the political scenery for the next few years, the period set for the approval of the new Forest Code, the chances of an unconstitutionality ruling are very high.

Brazil will be the focus of international media due to the upcoming 2014 Soccer World Cup and the 2016 Olympic Games. The bad publicity generated by a pending environmental issue that has impacts not only locally, but worldwide, is not in the best interest of the country. Therefore, the judiciary is expected to be sensible and rule in favor of unconstitutionality of the amendment.

There still is one approach that does not require the intervention of the court. Since the new Forest Code bill was reformed and amended at the Senate, there is a high likelihood that the amendments will be thrown out in the Council of Deputies without having to be submitted to the Supreme Court for the ruling of unconstitutionality.

Jayme Mello is a Senior Attorney with the firm Nogueira, Elias, Laskowski and Matias based in Brazil. He focuses his practice in corporate and business law and has taught multiple courses at the university level in these fields.